LAW315: Administrative Law Notes

LAW315: Administrative Law Notes Table of Contents Introduction to Administrative Law 1 Avenues of Review: Judicial, Merits, Ombudsman & Internal 8 Statutory Interpretation 12 Introduction to Jurisdictional Fact 20 Controlling the Executive 23 Government Power: Legislative, Executive and Judicial Power 30 Delegated Legislation, Subordinate Legislation 31 Formal and Informal Delegation of Decision-Making Power 43 Information: Reasons for Decisions, Freedom of Information Act 44 Merits Review 65 Jurisdictional Error: Types, Merits Review for Jurisdictional Fact, Grounds 88 Judicial Review: Commencing Proceedings, ADJR Act, Remedies, Grounds of JR, Procedural Fairness 96 Introduction to Bias and Categories of Bias 145 Compliance with Statutory Requirements 150 Judicial Review: No Evidence at Common Law, Judicial Review of Private Bodies 152 The Interaction of Public Law with Private Law 178 Exam Cheat Sheet 184

LAWS315: Administrative Law Notes Introduction to Administrative Law Role of Admin law and Admin lawyers Admin lawyers stand between the citizens and the government Administrative law focuses on how the government s decision affects the individual Constitutional Principles Elements structuring the way power is exercised & the way those who exert power think & behave o Formal written rules of a constitution o Unwritten conventions o Unwritten Principles o Unwritten Concepts o Unwritten values The following principles & features of the Australian Constitutional System will be discussed Rule of law Separation of Powers Responsible Government Constitutionalism Additional doctrines with a significant bearing on public law policy in Australia include o The ideology of liberalism = emphasises the right that individuals retain within a community o The doctrine of parliamentary supremacy = gives superiority to legal rules over competing moral & social claims. Rule of law Universal legal principle Principle of Legality The government cannot take coercive action against any person without existing legal authority Legal equality of government of citizens The existence of a single body and system of law that is applied to all Liberalism the right of a private persons Adjusted meaning in accordance with historical and cultural context of country Diceys work on Constitutional English law draws on the following 3 aspects of the ROL o Government cannot take coercive action against any person except in accordance with clear & existing legal authority principle of legality. Also demonstrated in Entick v Carrington = gov action will be unlawful unless there is legal authority o The scrutiny role played by parliamentary committees Separation of Powers SOP is not purely practised in Australia because

o Responsible government = breech because ministers constitute the executive & sit in parliament o Widespread delegation from legislature to executive ie the executive power to make subordinate legislation = breech o Maybe even the amalgamated exercise by some independent regulatory agencies of rule making etc. SOP is a constitutionally entrenched doctrine which has Judicial review, admin tribunals & merit r/v The division between judicial & executive functions is reflected also in the criteria for lawful decision making applied by courts, which are premised on a legality / merits distinction. Division of legislative & executive is demonstrated in treaty making o Executive makes the treaty o The legislative incorporates the treaty into domestic law Differences between judicial & executive in decision making o Judicial = adversarial resolve an issue by focussing on competing aims of the parties. Rights of the individual litigant is paramount o Executive = to approach individual decisions in a broader context, taking account of government policy, internal precedents & practical & resource implications. 3 major organs of the gov system each perform a single & different function 1. Legislature Enacts Laws 2. Executive Applies laws in individual cases 3. Judiciary Conclusively resolve any disputes about the meaning / application of law Objective o checks & balances on the exercise of government power & o ensure the branch is best suited to tasks Responsible Government The ministers who control the executive departments of the state are members of the parliament, and their right to function as a government continues only while they have the confidence of the Lower House of parliament To remain in government, a party or coalition must maintain the support of the majority of members in the House of Representatives. This is part of the principle of responsible government. It ensures that the government is accountable to the Parliament. In Australia, the principle of responsible government works together with the principle of the separation of powers to guide the way in which law is made and managed State & Federal governments in Australia are both in accordance with the principles of responsible Government, which states that ministers who control the executive department are members of parliament. Also the governor general, the queens representative, is head of the executive. RG used to be a barrier to the development of admin law. Now political accountability is no longer regarded as all encompassing judicial & tribunal review can extend to ministerial decisions. Constitutionalism This is a principle of limited government The power exercised my parliament & the executive is limited in 2 ways 2

Decision... made... under an enactment This restriction excludes review of non-statutory decisions such as those made under executive or prerogative power and under contracts to which a government is a party. o What is an enactment? The ADJR Act s 3(1) defines an enactment as a Commonwealth Act and an instrument (including rules, regulations or by-laws) made under such an Act. It includes subordinate legislation. And instrument is apt to include documents of an administrative as well as legislative character. To qualify as an instrument, the document must be of such a kind that it has the capacity to affect legal rights and obligations. o When is a decision under that enactment? Under means in pursuance of or under the authority of. It requires a link between the decision to be reviewed and a power conferred by an enactment to make that decision. Griffith University v Tang Facts: A postgraduate student challenged the decision of a committee at her university, to exclude her from PhD candidacy on grounds of academic misconduct. The High Court held that the action should be dismissed on the basis that the decision was not under an enactment (the Griffith University Act). Issue: Under an enactment. Held: The University Council is empowered to make university statutes under the Act but there were no such statutes relevant to the appeal. It had established an Academic Committee which had made policies and these had been applied by a sub-committee. The crux of the issue in each case is whether the enactment has played a relevant part in affected or effecting rights or obligations. Judicial Reviews Remedies The three types of remedies used in judicial review of administrative action are: 1. The prerogative writs(constitutional remedies under s 75(v)). of certiorari, prohibition, mandamus and habeas corpus 2. The equitable remedies of injunction and declaration 3. The statutory remedies available under the ADJR Act The Prerogative / Constitutional Writs The term prerogative writ has fallen out of favour and the preferred term held in Aala, [1] is now constitutional writ. o Following the fusion of equity and common law jurisdiction, a court can choose to grant an equitable remedy in addition or instead of a prerogative writ. o Declaration is the most commonly used writ because of its flexibility and the general preparedness of government agencies to abide by a declaration. o Equitable r v have some technical advantages: 123

They can be used without differentiation in public and private law matters. The time limits for applying them are less strict. The time limit for applying certiorari is six months, the time limit for mandamus is two months and there is no time limit for prohibition because of the time limited nature of the writ. o In other situations it is necessary or desirable to use prerogative writs rather than equitable ones: When it is necessary to formally quash a decision by certiorari, such as a decision revoking a licence, imposing a sanction or granting a contested interest to another person. The standing requirements are in some respects more liberal. Aala Facts: Mr Aala contended that he had been denied natural justice by the Refugee Review Tribunal. He commenced proceedings in the High Court (at that time the Federal Court could not grant relief on for breach of natural justice under the Migration Act). The High Court upheld the claim and granted prohibition to restrain the minister from acting on the tribunal s decision, certiorari to quash the tribunal s decision and mandamus to require the tribunal to reconsider the case. Issue: preference for term constitutional writs. Held: The term prerogative writ is inapt because it does not describe the special significance of the writs by reason of their constitutional use and context, which is not constrained by the same principles applying to a prerogative writ in the English sense. Certiorari Certiorari enables a superior court to quash a decision on the ground of jurisdictional error, breach of natural justice or error on the face of the record. The writ was originally directed at an inferior court or tribunal, requiring it to certify its official record so that it could scrutinised for legal error. It has been suggested that the requirement that the decision-maker has a duty to act judicially is no longer necessary to issue the writ, instead the critical issue is whether the relevant decisionmaker is exercising public power, relevantly, a statutory power. Certiorari does not issue against a Supreme Court but the High Court can grant it against the Federal Court or Family Court because those judges are officers of the Commonwealth for the purposes of s 75(v) of the Constitution. It does not issue against a governor, a magistrate exercising powers in a committal proceeding, or an industrial tribunal making an arbitral award but does against ministers and other executive officers. The remedy is not listed under s 75(v) and can therefore be ousted by a privative clause. o The court issues certiorari as an ancillary remedy and therefore will only grant it if entitlement to another constitutional remedy has been established. Certiorari can only quash a decision that has a discernible or apparent legal effect upon rights (that is, something that can be quashed) (Hot Holdings) [4] The remedy may be refused in relation to a report or preliminary decision/step if there is a more convenient and satisfactory alternative remedy or process. o In Ainsworth the commission had submitted a report to a parliamentary committee, advising that the Ainsworth group of companies not be permitted to participate in the 124

V) Declaration: a conclusive statement by court on point of law; not coercive; equitable in origin; can be granted as an ancillary remedy: JA SS 32; 39B; court has DISCRETION NOT TO GRANT A DECLARATION: Dyson VI: Habeas corpus: requires a govt authority, detaining someone, to establish the legal basis for the detention. Detainee must show: respondent is responsible for the detention, detention is unlawful, detainee has legal right to be released: Vadarlis. SPECIFIC GROUNDS OF JR BREACH OF NATURAL JUSTICE ADJR ss 5(1)(a), 6(1)(a) NJ = PF imposes 2 RULES: HEARING RULE AND BIAS RULE If either rule is breached, there is an error of law; it is also a jurisdictional error: AALA & Plaintiff S157/2002 v Commonwealth of Australia 2001 CL rules of NJ apply to admin DM that is apt to affect a person s rights or interests in their individual capacity: Kioa; Miah. Hearing Rule: app should have been given a hearing in particular circumstances NB: If there is an allegation against the app s interests and it is credible, relevant and signifcant the app should be given a hearing: Kioa; Miah; VEAL. App was denied a fair hearing in the circumstances: i) Prior notice of a decision being made; ii) disclosure of an outline/summary of the information on which the decision is proposed to be based; and iii) opportunity to commend and respond to that info: AALA Bias Rule: actual or apprehended bias Actual: where DM s mind is closed to persuasion that argument against that view in ineffectual: Minister for Imm and Multicultural Aff v Jia 2001 HELD: that the actions of the minister did NOT constitute either actual or apprehended bias. Gleeson CJ and Gummow J: The question is not whether a DM s mind is blank; it is whether it is open to persuasion It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. SUBJECTIVE TEST Apprehended: lay observer might reasonably apprehend that the DM might not bring an impartial mind to the matter at hand: Ebner v Official Trustee in Bankruptcy 2000 OBJECTIVE TEST with 2 elements: 1) ID of what might lead to an absence of impartiality 2) Articulation of logical connection between the 1 st element and the departure from impartial DM: Ebner BREACH OF STATUTORY REQUIREMENT ADJR s 5(1)(d) Where DM has breached clear, substantive statutory obligatory requirement, decision is unlawful Whether it was a purpose of the legislation that an act done in breach of the provision should be invalid: Project Blue Sky v Australian Broadcasting Authority 1992 FETTERING DISCRETION THROUGH GOVT. POLICY ADJR ss 5(2)(f) Govt policy must not restrict a statutory discretion so as to prevent a DM from applying criteria under legislation: Green v Daniels Govt. policy should not be applied inflexibly without regard to the merits of a case: MILGEA v Gray DICTATION ADJR ss 5(2)(e) DM entrusted with discretion must exercise that discretion independently rather than submit to the instructions, views or policy of another person or body: Rendell. UNAUTHORISED PURPOSE ADJR ss 5(2) DM can only exercise power for the purpose for which it was conferred. Exercise power for another purpose is unlawful: R v Toohey. 2 STAGE ANALYSIS i) to discern the purpose for which a power may be exercised; and ii) to discern what was the DM s actual purpose in exercising the relevant power: Municipal Council of Sydney v Campell IRRELLEVANT CONSIDERATIONS ADJR ss 5(2)(a) D may be invalid if the DM took into account an irrelevant consideration: Trebilco An irrelevant consideration is one that a DM is not permitted to consider under the power given to the DM FAILURE TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS ADJR ss5(2)(b) Decision may be invalid if the Dm has failed to consider a relevant matter in reaching a decision: Peko-Wallsend Relevant consideration is one that the Dm is required to consider under the power granted to him or her (expressly required by the statute or impled by the Court) WEDNESBURY UNREASOABLENESS ADJR ss 5(2(g) a decision will be invalid if it was arbitrary, capricious or lacked common sense and where the reasoning lacks an evident and intelligible justification: Associated Provincial Picture Houses v Wednesbury Corp Ltd 1948; Min of Imm & Cit v Li (2013): issue: whether the MRT should have granted adjournment; unreasonableness. Failure by migration review tribunal 5 members of HC held it should have granted held decision to deny Li did not engage with the an arbitrariness about the decision, which rendered it unreasonable li enforced important of ensuring reasons show an engagement with submissions and how its in the DM process objective test court cannot substitute its own subject view on whether the DM acted reasonably: Applicant S20/2002. NO EVIDENCE ADJR ss5(1)(h) If there is a severe lack or absence of evidence to satisfy an essential statutory element of the decision-making process, there will be an error of law Not be an EoL if evidence is merely inadequate: Melbourne Stevedoring Where statutory criterion is a state of satisfaction by the DM, this may be reviewable for irrationality or illogicality if the decision is one that no rational or logical DM could reach on the same evidence: SZMDS; Li Ground is satisfied if: DM was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material from which the DM could reasonably be satisfied that the matter was established or the DM based he decision or conduct on the existence of a particular fact, and that fact did not exist. LIMITS ON JUDICIAL REVIEW PRIVATIVE CLAUSES If JE is involved, the privative is ineffective: Plaintiff S157 Hickman Principle is that a PC cannot prevent JR if the decision: on its face exceeds the authority conferred by the relevant legislation on the DM; involved bad faith by the DM; does not relate to the subject matter of the legislation that the DM relies on for the exercise of power Court will only conclude that a privative clause prevents JR if the legislation as a whole was intended to inhibit JR of the particularly form of error of law in question: Plaintiff S157 State legislation Const requires the state supreme Courts to be permitted to provide relief in respect of JE: Kirk. TIME LIMITATION CLAUSES Limit the period which JR may be sought with a statutory provision Do not necessarily infringe const if they simply regulate access to constitutionally protected JR If provision appears to regulate such access, but in practice is so restrictive that it effectively prohibits JR, will be unconstitutional: Bodruddaza CASES JUSTICIABILITY Council of Civil Service Unions v Minister for the Civil Service (1985) Facts: The Minister for the Civil Service made a decision to alter terms of employment for 4000 civil servants at GCHQ that meant they could only belong to a trade union approved by the director of the GCHQ. The power for the decision was made under the royal prerogative. Reason given for both the decision and the reason not to consult the unions was that it was a matter of national security Issue: justiciability and national security HELD: that ordinarily the decision would not have been allowed because it was a breach of natural justice not to consult the unions BUT because it was a matter of national security and made with prerogative power it was deemed NOT JUSTICIABLE NOTE: prerogative power alone is NOT enough to make a matter not justiciable JURISDICTIONAL FACT